McClelland v. Smith

• Decision Date: 31 December 1848
• Parties: S. K. MCCLELLAND v. J. M. SMITH
• Court: Texas Supreme Court

3 Tex. 210

S. K. MCCLELLAND

v.J. M. SMITH

Supreme Court of Texas.

December Term, 1848.

Appeal from Shelby County.

To constitute a fatal variance between the instrument attempted to be described in the pleading, and the one offered in evidence, the misdescription must be such as to mislead or surprise the adverse party; otherwise it should be disregarded by the court.

The fictions and most of the forms of the common law courts find no place in our system of pleading. The petition with us should be “a plain, straightforward statement of the cause of action, without repetition or circumlocution.”

Case stated in the opinion of the court.

HICKS, for appellant, cited the following authorities: 1 Starkie's Ev. pp. 414, 418, 419, 421; Chitty on Bills, 9th Am. from 8th London ed. 579; Arch. Cr. Pl. 3d Am. ed. 101; 13 Johns. 486;5 Johns. R. pp. 1, 29; 1 Leach. 227; 1 Chitty's Pl. 7th Am. ed. 334, 14, 519; 10 Johns. R. p. 133; 1 Starkie, 413; 2 Starkie, 149.

ARDREY, for appellee, cited: 1 Chitty Pl. 331, 336, 341; 1 Greenl. Ev. 126, 127, 133, 137; 1 Phil. Ev. 208.

Mr. Justice LIPSCOMB delivered the opinion of the court, Judge WHEELER not sitting.

This suit was brought on two notes described in the plaintiff's petition, as follows, that is to say: “The first was described as a “certain instrument in writing, commonly called a promissory note, and now in court to be produced by him, by the name and description of J. M. Smith, subscribed, promised petitioner by the name and description of Sam'l K. McClelland, to pay him or order three hundred dollars to be paid in horses and cattle; the horses at whatever price might be agreed upon, and the cattle at $10 for cows and calves, on or before the first day of June, 1845;” and the second note was described as follows: “a certain other instrument in writing commonly called a promissory note, and now in court to be produced by him by the name and description of J. M. Smith, subscribed and sealed, for value rec'd promised petitioner by the name and description of Sam'l K. McClelland to pay him or order, on or before the 25th Dec., 1846, one hundred and twenty dollars and seventy-five cents.” On the trial two notes were offered in evidence by the plaintiff, and objected to by the defendant. The objection was sustained by the court, on account of a variance. The plaintiff excepted to the decision of the court in the rejection of the notes. There was a verdict for the defendant, and judgment, from which the plaintiff appealed. The notes offered in evidence were supposed not to be sufficiently described, in this, that the name of the payee in the note is written Sam'l K. McLelland, instead of Sam'l K. McClelland, as written in the petition.

The appellant insists that the variance is not material, and that the court below erred in ruling the notes out. He referred to several authorities to show that in similar cases the objection was not sustained. There can be no doubt that in the English courts the rule as to a variance between the cause of action declared on, and the evidence, is much more rigidly enforced than in most of the state courts in our own country. It is, however, believed that the rule is greatly relaxed in England from its former stringency. In the case of assumpsit by the indorsee against the acceptor of a draft payable to Phillip Phillip, and by him indorsed to the plaintiff, it appeared that the name of the indorser was Phillip Phillips. Lord ELLENBOROUGH said that the only question was as to the identity of person, and that the variance was not material. In the same case, the declaration alleged that the draft was presented for acceptance the day of its date, and presented for payment accordingly, when in fact it bore date August the 11th, and had been presented for acceptance 19th September, and accepted and presented for payment on the 11th of November. It was objected that this was a variance, as the presentment for payment on the 11th November was not at the time alleged in the declaration. It was held not a material variance; and, as between the indorser and acceptor, it was intended to aver that the presentation for payment was after it was due and payable. In Walters vs. Mace [18 Eng. Com. 149], the variance between Baron Waterfolk and Water Park was held to be material and fatal. It is said, however, that in the English courts there is this distinction: that the misnomer of a third person is fatal, whilst it is not material on the general issue, as to one of the parties, where the identity is proved; and Dickinson vs. Bowes is referred to. In the case of Edwards vs. Clemons [24 Wendell, 480],the variance objected to was as to the time of payment. Mr. Justice COWEN says: “No doubt there is a variance between the notice and proof in respect to the time of payment, which would have been fatal within the principle of Bristow vs. Wright [Doug. 665]. The notice relies on rent payable quarterly, while the proof leaves it in effect payable at the end of the current year. No stipulation to pay quarterly was shown. “The variance, however,” as remarked by the learned judge, “not operating prejudicially to the plaintiffs, might, as it...